Government allowed to fund non-Catholic students at Catholic schools, Sask. appeal court rules

Saskatchewan's highest court says it's OK for separate schools to receive provincial government funding for students who are not Catholic.

The Saskatchewan Court of Appeal decision, released Wednesday, is the latest in a case which saw the provincial government and its Catholic school system engaged in a court fight with one of Saskatchewan's public school divisions.

The case dates back to 2003, when the public Good Spirit School Division decided to close the only school in the community of Theodore, Sask. The school had served both Catholic and non-Catholic students.

In order to keep their school, local parents decided to start a new one under a separate school board.

That school division bought the existing school in the village and renamed it St. Theodore Roman Catholic School. The majority of students switched to the Catholic system, despite not being Catholic. 

The Good Spirit division took the matter to court, arguing that the constitutional protection of Catholic schools does not include the right for those schools to receive government funding for non–Catholic students.

In 2017, Justice Donald Layh ruled it was unconstitutional for the province to fund non-Catholic students at Catholic schools because it violated constitutional guarantees of freedom of religion and religious equality.

The appeal court's decision says the trial judge made "fundamental errors of law."

In a unanimous ruling, the appeal court said considering the matter as one that only involves funding for non-Catholics in a Catholic school is too narrow. It said the question must be considered in the context of two school systems, both of which are publicly funded.

"It is an effect of this parallel public system of education that non-Catholic students may attend public, separate schools, but it is also an effect that Catholic students may attend public, secular schools," the court ruled.

'Groundswell' of support to fund appeal

Tom Fortosky, executive director of the Saskatchewan Catholic School Boards Association, says he's "relieved and grateful" for the decision.

"Parents who wish to choose what we have to offer — which is a distinctively Catholic, faith-based education — are able to make that choice," he said.

"We think that a significant amount of time and money has already been spent on this on a court case, and our hope is that we would now refocus all of our energies on the education of children."

The appeal was funded by private donors and Fortosky said there was a "groundswell" of support, with many small donations from the community.

'Different courts offering differing opinions"

Norm Dray, executive director of Public Schools of Saskatchewan, said he was disappointed with the decision.

"But now we have two different courts offering differing opinions on the case, and we still believe that Justice Layh's decision was a well-thought out and well-written decision," he said.

"Public schools are the only schools with a mandate to serve all students. This case has been about clarifying the mandate of Catholic schools. We think that ... Catholic schools should be funded to educate Catholic students."

Dray said the organization will be consulting with its members about whether it will take further action.